Background

Executive Order

Governor Perdue has issued an executive order that will allow special-interest groups to play a major role in appointing judges.

When vacancies occur on the court (excluding elections), the governor, according to the language of her executive order, will have to appoint a judge from a nominating commission filled with representatives from special interest groups:

On and after July 1, 2011, when a vacancy occurs in the office of Chief Justice or Associate Justice of the Supreme Court, Judge of the Court of Appeals, or Judge of the Superior Court, the Judicial Nominating Commission established by this Order shall nominate, from among applicants for appointment to any such vacancy, the three persons it determines most qualified to fill the vacancy, and the Governor will appoint one of those persons to the position. This Order does not apply to the appointment of Judges of the District Courts or to the appointment of Special Superior Court Judges.

Eight of the 18 voting members of the commission would be individuals recommended by the following organizations (each organization gets one person on the commission):

  • North Carolina State Bar
  • North Carolina Bar Association
  • North Carolina Advocates for Justice
  • North Carolina Association of Defense Attorneys
  • North Carolina Association of Black Lawyers
  • North Carolina Association of Women Attorneys
  • Indigent Services Commission
  • North Carolina Conference of District Attorneys

Proposed Constitutional Amendment

If the executive order wasn’t bad enough, there’s a proposed constitutional amendment that would replace voter input into electing Supreme Court Associate Justices, Court of Appeals judges, and Superior Court judges, with the input of special interest groups.

There would be a 16-member commission, with eight members coming from the groups listed above. The commission would nominate two individuals, one of whom the governor would appoint in the event of a judicial vacancy. When there’s an election, the commission would identify the two candidates who would be placed on the ballot (apparently with no input from the governor). Note: There are additional details to the system, such as retention elections.

Judicial Independence

There may be a reasonable discussion to have regarding whether voting for judges is really a better approach than an appointment system. Certainly, we all want a fair and independent judiciary. However, these proposed systems would make things far worse.

The Flaws

Special interest groups that are unelected and unaccountable to the people would have an inappropriate amount of influence on who would become our judges. The rest of the members of these commissions, while not necessarily from special-interest groups (although they could be), would also be unelected and unaccountable.

If the goal is to have an appointment system, then the governor should appoint the judges with the Senate having confirmation power. There’s accountability in such a system, and while there still would be backroom deals, at least the system doesn’t provide official power to the special interests.

Why should these particular groups have commission members and not other organizations? There’s no rational reason, but there are political reasons. The amendment and presumably the executive order are creations of the North Carolina Bar Association.

This proposal goes out of its way to avoid a straightforward appointment process so that special interests, such as the North Carolina Bar Association, can decide who will serve in the judiciary.

Allowing a select group of unelected individuals to decide who will be judges is far worse for an independent judiciary than allowing voters to decide — besides, it is undemocratic. It also represents an arrogance that these select individuals are smarter than voters.

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